Kivell v. Murphy Oil USA (In re Asbestos Litigation, 2017)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, August 30, 2017).

Sandra Kivell sued Murphy Oil USA Inc. individually and as representative of the estate of her husband, Milton Kivell. She alleged he contracted mesothelioma while working at Murphy's refinery and later died of it. Mr. Kivell said he did construction work at the refinery in 1972, for Litwin Construction, and in 1979, for a subcontractor of McDermott/Hudson Engineering. Murphy moved for summary judgment, arguing it owed him no duty under Louisiana law. The court agreed. It relied on a federal decision that separated hazards inherent in a premises from hazards inherent in an independent contractor's job. It found nothing for a jury to infer that asbestos was inherent in Murphy's premises. An affidavit said asbestos insulation was not used in the 1979 units. The plaintiff offered no evidence that Murphy knew asbestos was being used, requested it, or knew its dangers. On strict liability, the court found nothing showing Murphy had direction, control or ownership of any asbestos product. It granted summary judgment on both claims.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Delaware Superior Court
• Decided: August 30, 2017
• Stage: Summary judgment
• State: Delaware

Outcome. The court granted Murphy Oil USA Inc.'s motion for summary judgment on the negligence and strict liability claims brought by Sandra Kivell, so the plaintiff lost.

What the court held. Under Louisiana law, a premises owner owes no duty for hazards inherent in an independent contractor's work, and strict liability requires custody, meaning direction, control or ownership, of the defective thing. The plaintiff offered no record evidence of either.

Issues decided: Choice of Law, Design Defect, Premises Owner Liability.

The people and their exposure

• Milton J. Kivell: mesothelioma; died

Who	Work	Where	When	Products
Milton J. Kivell	construction worker who cut shipping brackets (refineries and petrochemical plants)	Murphy Oil refinery, Meraux, Meraux, Louisiana	1972
Milton J. Kivell	tubing installer (refineries and petrochemical plants)	Murphy Oil refinery, Meraux (FCC Unit and Alkylation Unit in Area 4), Meraux, Louisiana	1979

The defendants

• Murphy Oil USA Inc. (premises owner)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• In re Asbestos Litigation (May 9, 2006). The court denied DaimlerChrysler's motion in limine to exclude the plaintiffs' experts on general causation, so the plaintiffs' experts may testify that automotive friction products increase the risk of asbestosis, lung cancer and mesothelioma.
• Grenier v. General Motors Corp. (In re Asbestos Litigation) (April 8, 2009). On remand from the Delaware Supreme Court, the Superior Court concluded that, despite factual errors in its earlier opinion, it properly denied General Motors' and Ford's motion to exclude plaintiffs' general causation expert testimony, so Grenier's experts remained admissible.
• Freeman v. Georgia-Pacific (In re Asbestos Litigation) (January 13, 2011). The court denied Georgia-Pacific's motion for summary judgment because plaintiffs raised a genuine dispute of fact about whether Wilburn Freeman was exposed to Georgia-Pacific's asbestos-containing joint compound.
• Olson v. Crane Co. (In re Asbestos Litigation) (January 18, 2011). The Delaware Superior Court granted summary judgment to defendants Crane Co. and CBS Corp. (Westinghouse) against plaintiffs, holding Idaho law would not make them liable for other manufacturers' asbestos-containing parts.
• Cruz v. Georgia-Pacific (In re Asbestos Litigation) (January 19, 2011). The court granted Georgia-Pacific's motion for summary judgment, ruling that plaintiffs could not show under Texas law that exposure to its Ready Mix joint compound was a substantial factor in causing Cruz's mesothelioma.
• Ashworth v. Pneumo Abex (In re Asbestos Litigation) (February 14, 2011). The court granted Pneumo Abex's summary judgment motion on the survival action as time-barred, but denied it on the wrongful death claim, which was timely and had factual disputes on causation and product identification.
• James v. Albany Int'l (In re Asbestos Litigation) (February 16, 2011). The court granted Albany International's motion for summary judgment against plaintiff Charlene James because there was no non-speculative evidence that Robert James was exposed to an asbestos-containing Albany product.
• Newman v. Avocet Enterprises (In re Asbestos Litigation) (March 15, 2011). The court denied Avocet Enterprises' motion for summary judgment on the Newmans' remaining claims, because Newman's testimony about using Ventbestos raised a factual dispute on causation, and found the motion moot as to the withdrawn conspiracy claim.
• Henderson v. Dana Companies (In re Asbestos Litigation) (March 22, 2011). The court granted in part and denied in part the plaintiffs' post-trial motion for costs against Dana and Zoom, awarding $14,597.12 in costs plus pre- and post-judgment interest.
• Foucha v. CertainTeed Corp. (In re Asbestos Litigation) (May 31, 2011). The court granted CertainTeed Corp.'s motion for summary judgment, ruling against plaintiffs Raymond and Sussanah Foucha because they lacked evidence that he was exposed to an asbestos-containing CertainTeed product.
• Foucha v. Georgia-Pacific (In re Asbestos Litigation) (June 3, 2011). The court granted Georgia-Pacific's motion for summary judgment against Raymond and Sussanah Foucha because they could not show without speculation that Foucha was exposed to asbestos from Georgia-Pacific joint compound.
• Bowser v. Parker-Hannifin Corp. (In re Asbestos Litigation) (June 3, 2011). The court granted Parker-Hannifin's summary judgment motion in part (strict liability count and helicopter brake exposures before 1967) and denied it as to the airplane brake claims, so Plaintiff Jenny Bowser's remaining claims proceed.
• Davis v. Crane Co. (In re Asbestos Litigation) (June 7, 2011). The court granted Crane Co.'s motion for summary judgment against plaintiff Wesley Davis, finding he had not shown Crane-supplied asbestos products were a substantial factor in causing his mesothelioma.
• Clineff v. BP Amoco Chemical Co. (In re Asbestos Litigation) (July 8, 2011). The court granted summary judgment to BP Amoco Chemical Company, BP Corporation North America Inc., and Kvaerner U.S. Inc. because the plaintiffs' claims were filed after the two-year limitations period expired.
• Gordon v. Dana Companies (In re Asbestos Litigation) (November 16, 2011). The court granted summary judgment to Dana (Victor gaskets) and UOP, and denied summary judgment to Elliott, Armstrong and Born, so the plaintiffs' claims against those three go forward.
• McCoy v. PolyVision Corp. (In re Asbestos Litigation) (February 21, 2012). The court granted summary judgment to PolyVision Corp. against Janine and Marvin McCoy, predicting Pennsylvania law imposes no duty on an employer or premises owner to an employee's spouse for take-home asbestos exposure.
• Galliher v. R. T. Vanderbilt (In re Asbestos Litigation) (May 9, 2012). The court allowed plaintiff's late-disclosed geologist (Fitzgerald) to testify, excluded plaintiff's other late expert (Dr. Rigler), continued the trial to July 16, 2012 so defendant R. T. Vanderbilt could develop rebuttal evidence, and sanctioned defendant's out-of-state counsel $5000.
• Farrall v. Ford Motor Co. (In re Asbestos Litigation) (August 19, 2013). The court denied the plaintiff's motion for reargument, leaving in place its grant of summary judgment for Ford Motor Company on the failure to warn claim about asbestos-containing replacement parts.
• Muse v. Honeywell Int'l (In re Asbestos Litigation) (December 31, 2014). The court denied the plaintiffs' motion for reargument, leaving in place summary judgment for Honeywell International Inc. against James Muse and Clarice Roberts-Muse.
• Harris v. Deere & Co. (In re Asbestos Litigation) (May 10, 2017). The court granted Deere & Company's motion for summary judgment, ruling for Deere against the plaintiff, because under North Carolina law the plaintiff offered no evidence beyond speculation that the asbestos-containing parts he worked on were made or sold by Deere.
• Kivell v. Air Prods. and Chemicals (In re Asbestos Litigation) (August 30, 2017). The court granted Air Products and Chemicals Inc.'s motion for summary judgment on the negligence, strict liability and wrongful death claims, ruling against plaintiff Sandra Kivell.
• Kivell v. Union Carbide Corp. (In re Asbestos Litigation) (August 30, 2017). The Delaware Superior Court granted Union Carbide's motion for summary judgment on Sandra Kivell's negligence and strict liability claims, so Union Carbide won and the plaintiff lost.
• Walsh v. Air & Liquid Systems Corp. (In re Asbestos Litigation) (October 27, 2017). The court granted summary judgment to Air & Liquid Systems Corp. (successor to Buffalo Pumps) against plaintiffs Phillip and Naomi Walsh, finding no evidence Mr. Walsh was exposed to asbestos parts the defendant was responsible for.
• Leathers v. Pneumo Abex (In re Asbestos Litigation) (November 8, 2017). The court denied Pneumo Abex LLC's motion for summary judgment, so plaintiff Raymond Leathers' claims against Abex go forward to trial.
• Walsh v. Aurora Pump Co. (In re Asbestos Litigation) (November 29, 2017). The court granted Aurora Pump Company's motion for summary judgment against Phillip and Naomi Walsh because they did not show that Mr. Walsh was exposed to asbestos from Aurora's products.
• Sykes v. Air & Liquid Systems Corp. (In re Asbestos Litigation) (February 7, 2018). The Superior Court affirmed the Special Master's order excluding William Don Sykes's videotaped trial deposition at trial, a ruling for the defendants and against the plaintiff estate.
• Kivell v. Georgia Pacific Consumer Prods. LP (In re Asbestos Litigation) (March 26, 2018). The court granted Georgia Pacific's motion for judgment on the pleadings, holding that Sandra Kivell's wrongful death and survival claims were time barred under Louisiana's one-year limit.
• Richards v. Copes-Vulcan (In re Asbestos Litigation) (August 8, 2018). The court denied the Richards plaintiffs' motion for leave to supplement their expert's report and for reargument, leaving in place summary judgment for Copes-Vulcan, Fairbanks, Ford and Goodyear.
• Call v. Ford Motor Co. (In re Asbestos Litigation) (December 12, 2018). The court granted Ford Motor Company's motion for summary judgment against plaintiff Marilyn Kay Call, holding Indiana's "but for" causation standard applies and her expert's opinion did not meet it.
• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (January 31, 2019). The Delaware Superior Court denied Ford Motor Company's renewed motion for judgment as a matter of law, its alternative motion for a new trial, and its motion for a new trial or remittitur, leaving the plaintiff's jury verdict in place.
• Rowland v. Union Carbide Corp. (In re Asbestos Litigation) (April 24, 2019). The Delaware Superior Court granted Union Carbide's motion for summary judgment against Jane and Douglas Rowland because they could not show that the joint compound they used contained Union Carbide's asbestos.
• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (March 3, 2020). On remand from the Delaware Supreme Court, the Superior Court denied Ford Motor Company's motion for a new trial or remittitur, leaving the $40.625 million compensatory verdict for Paula Knecht in place.
• Petit v. Hennessy Indus. (In re Asbestos Litigation) (August 31, 2020). The Delaware Superior Court granted Hennessy Industries' motion for summary judgment against the Petit plaintiffs, because plaintiff did not show exposure to asbestos-containing brakes or to friable asbestos with the AMMCO machines.
• Pearsons v. Heidelberg USA (In re Asbestos Litigation) (December 23, 2020). The court denied Heidelberg USA's summary judgment motion on causation, statute of repose and product misuse, and granted it only on the willful and wanton conduct claim, which Mrs. Pearsons did not contest.
• Jordonek v. Hennessy Indus. (In re Asbestos Litigation) (April 11, 2023). The court denied Hennessy Industries' motion for reargument, so its earlier oral denial of summary judgment on the duty-to-warn claim stood and the plaintiff, Lisa Estrada, prevailed on this motion.
• Jordonek v. Hennessy Indus. (In re Asbestos Litigation) (April 25, 2023). The Superior Court denied defendant Hennessy Industries' request to certify an interlocutory appeal to the Delaware Supreme Court of the earlier denial of its summary judgment motion, so plaintiff Estrada prevailed on this request.
• Braxton v. J-M Mfg. Co. (In re Asbestos Litigation) (December 17, 2024). The court granted defendant J-M Manufacturing's motion for leave to designate responsible third parties, rejecting plaintiff Braxton's objections on pleading sufficiency, limitations timing and bankruptcy proofs of claim.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Thomas v. AP Green Industries, Inc. (Louisiana Court of Appeals, 4th Circuit, 2006). The appeals court amended the judgment to cut the surviving spouse's wrongful death award against Entergy Louisiana from $2.75 million to $1 million, and otherwise affirmed the jury verdict for the plaintiffs, including the directed verdict for McCarty and the jury's finding of no fault by Johns Manville.
• Jefferson v. Cooper/T. Smith Corp. (Louisiana Court of Appeals, 4th Circuit, 2003). The appeals court reversed the summary judgment that had dismissed the Dock Board from the plaintiffs' suit and remanded for further proceedings, ruling for the plaintiffs against the Dock Board; rehearing was denied.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

IN RE: ASBESTOS LITIGATION.

SANDRA KIVELL, individually and as Personal Representative of the Estate of MILTON J. KIVELL,

deceased, Plaintiff,

v.

MURPHY OIL USA INC. etal., Defendants.

C.A. No. N15C-07-093 ASB.

August 30, 2017.

Superior Court of Delaware.

Upon Defendant Murphy Oil USA Inc.'s Motion for Summary Judgment GRANTED.

ORDER

CALVIN L. SCOTT, Jr., Judge.

Plaintiff Sandra Kivell ("Plaintiff") cannot satisfy the summary judgment criteria.[1]

Plaintiff alleges that her husband, Milton Kivell ("Mr. Kivell") contracted mesothelioma while working at Defendant Murphy Oil USA Inc.'s ("Defendant") refinery, and Mr. Kivell's illness eventually caused his death. In August 2015, Mr. Kivell was deposed. Mr. Kivell stated that he worked construction jobs at Defendant's facility in 1972 and 1979. Mr. Kivell was employed by Litwin Construction during 1972 where Mr. Kivell cut shipping brackets. A Litwin employee, Vincent Vicidomina, stated that Mr. Kivell's work for Litwin included part of the construction of the Crude Distillation, Platformer, and Hydrobon units by Litwin at the refinery. According to Mr. Vicidomina's affidavit, Defendant hired Litwin Construction as a "turnkey contractor," which is a "contractor who exercised total control of the construction of the new unit. . . and then turned the new unit over to Murphy upon completion." Additionally, "Litwin was obliged to furnish `all mechanical design, drafting, procurement, expediting, and inspection services; equipment and materials; transportation and travel; field labor and supervision; construction tools, supplies and facilities. . . and all other things and services necessary for the installation of a battery limits process facility." Mr. Kivell also testified that the 1972 project was directed by his Litwin foreman. In 1979 Mr. Kivell worked at Murphy while he was employed by Matthews McCraken Rutland ("MMR"), a subcontractor of the general contractor McDermott/Hudson Engineering. McDermott constructed the FCC Unit and Alkylation Unit in Area 4 of the Meraux refinery from 1977-1980. Mr. Kivell's job involved installation of tubing. Mr. Vicidomina stated that asbestos insulation products were not used in the construction of the FCC and Alkylation Unit in Area 4 of Defendant's refinery. Defendant provided the McDermott contract which states that McDermott maintained the right to direct and control the construction and the workers. Plaintiff claims that Defendant ignores Mr. Kivell's testimony that his work at Murphy involved significant maintenance of existing equipment, and "tie-ins" of new equipment, and that Murphy specified the use of asbestos in its facility. However, this is a freestanding proposition with no citation to the record before the Court. Defendant argues that it did not owe a duty to Plaintiff under Louisiana law, thus Plaintiff's negligence action fails. Plaintiff relies on Thomas[2] and Smith[3], two decisions applying Louisiana law. Plaintiff argues these cases demonstrate that a landowner has a duty to protect independent contractors from unreasonable risks of injury or harm. A more recent decision from the United States District Court for the Western District of Louisiana, Roach v. Air Liquide Am., the court held that Smtih was an "improper expansion of Louisiana law," and "there is a distinction between hazards that are inherent in a defendant's premises (for which a premises owner owes a duty) and hazards inherent in an independent contractor's job (for which a premises owner does not owe a duty)."[4] The Roach court pointed out that the hazard to the plaintiff in that case, sandblasting silica, was "not inherent in defendant's premises; the airborne silica which was temporary in nature and transported to the facility by the plaintiff's employer and/or supplier. The hazard was inherent in the performance of the sandblasting."[5] Thus, the court found that it was the "employer's duty to ensure plaintiff's safety with respect to the specific hazards created by the performance of [plaintiff's] work."[6] Likewise, Plaintiff claims that her husband was exposed to

asbestos from products used while employed by an independent contractor at Defendant's facility. Following the Roach decision, there is nothing in the facts for a jury to infer that asbestos was inherent in Defendant's premises. In fact, Defendant presented evidence that asbestos insulation was not used during construction of the FC Unit and Alkylation Unit in 1979.

Assuming that under a premise owner's general duty, which the Smith court expanded to include that a land owner "had a duty to take reasonable steps to ensure a safe working environment for the employees of an independent contractor,"[7] the record is void. Plaintiff did not provide evidence, such as, Defendant's knowledge that asbestos was being used, Defendant's specific request for asbestos use, or knowledge of the dangers of asbestos at the time Plaintiff was employed on Defendant's premises. For example, in Thomas, the employer's "construction manager, testified that in early 1970s [the company] was constructing and engineering power plants on a world-wide basis and knew of the hazards of asbestos exposure," and there was evidence of contracts for asbestos containing products to be used on the premises.[8] Similarly, in Jefferson[9], the plaintiff presented evidence that he unloaded, handled, and transported asbestos on the defendant's premises. Additionally, in Smith, the plaintiff presented evidence that he was exposed to asbestos while working on the defendant's premises. Here, Plaintiff has not presented any evidence to create a genuine issue of material fact that Defendant breached a duty owed to Mr. Kivell under Louisiana law. Therefore, Defendant's Motion for Summary Judgment on Plaintiff's negligence claim is granted.

Likewise, summary judgment on Plaintiff's strict liability claim is also granted. In Louisiana, to hold a defendant strictly liable, "the plaintiff must prove: (1) the thing which caused the damage was in the care, custody and control of the defendant; (2) the thing had a vice or defect which created an unreasonable risk of harm; and (3) the injuries were caused by the defect." [10] Additionally, custody, "for the purposes of strict liability, does not depend upon ownership, but involves the right of supervision, direction, and control as well as the right to benefit from the thing controlled."[11] The "[m]ere physical presence of the thing on one's premises does not constitute custody."[12] Defendant is entitled to summary judgment on the strict liability claim as well because there is nothing in the record indicating that Defendant had any type of direction, control, or ownership of an asbestos product used by Plaintiff. Mr. Vicidomina's affidavit, provided by Defendant, states otherwise. Therefore, Defendant's Motion for Summary Judgment is GRANTED.

IT IS SOORDERED.

[1] Super. Ct. Civ. R. 56; Smith v. Advanced Auto Parts, Inc., 2013 WL 6920864, at [*3] (Del. Super. Dec. 30, 2013); see Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979); Nutt v. A.C. & S., Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986); In re Asbestos Litigation (Helm), 2012 WL 3264925 (Del. Aug. 13, 2012).

[2] See Thomas v. A.P. green Indus. Inc., 933 So.2d 843, 853 (La.Ct.App. 2006).

[3] See Smith v. Union Carbide, 2014 WL 4930457, (E.D. La. Oct. 1, 2014).

[4] Roach v. Air Liquide America, 2016 WL 1453074, at [*4] (W.D. La. Apr. 11, 2016).

[5] Id.

[6] Id.

[7] Id. See Smith v. Union Carbide, 2014 WL 4930457, (E.D. La. Oct. 1, 2014).

[8] Thomas v. A.P. Green Indus. Inc., 933 So.2d 843, 853 (La.Ct.App. 2006).

[9] See Jefferson v. Cooper/T. Smith Corp., 858 So.2d 691, 695 (La.Ct.App. 2003).

[10] Migliori v. Willows Apartments, 727 So.2d 1258, 1260 (La.Ct.App. 1999)(citing Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La. 1990)).

[11] Haydel v. Hercules Transport, Inc., 654 So.2d 408, 414 (La.Ct.App. 1995).

[12] Id.

Sources

• The opinion on Google Scholar
• Delaware asbestos laws
• Delaware asbestos exposure sites